MARIANO ANTO BRUNO & ANR. versus THE INSPECTOR OF POLICE

MARIANO ANTO BRUNO & ANR.

THE INSPECTOR OF POLICE

(Criminal Appeal No. 1628 of 2022)

OCTOBER 12, 2022

[M. R. SHAH AND KRISHNA MURARI, JJ.]

Penal Code, 1860 – ss. 498A, 306 and 107 – Marriage ofAppellant No.1 (husband) & deceased was solemnized in 2005 – Amale child was born out of wedlock in 2007 – Prosecution casethat Appellant No.1 caused immense mental torture to deceased bycompelling her to have another child despite her miscarriage withsecond pregnancy and that deceased was subjected to continuouscruelty which drove her to commit suicide – Trial court convictedappellant No.1 & mother-in-law of deceased u/s 498A & 306 IPC –High Court upheld the conviction of appellants – Held: To convicta person u/s.306 IPC, there has to be clear mens rea to commitoffence – It also requires an active act or direct act which leadsdeceased to commit suicide finding no other option and the actmust be such reflecting intention of the accused to push deceasedinto such position that she commits suicide – The prosecution hasto establish beyond reasonable doubt that the deceased committedsuicide and appellant No.1 abetted the commission of suicide of thedeceased – In the present case, both the elements were absent – Sofar as conviction u/s.498A IPC is concerned, except the statementof PW-1 to PW-3 recorded after the incident, there is no otherevidence to establish the allegation of any demand of dowry or illtreatment meted out to the deceased during her marriage – PW-1 toPW-3 were interested witnesses & there were material contradictionsin their testimonies –There was no marital discord between AppellantNo.1 & deceased during nine years of their married life – The factthat deceased was suffering from bipolar disorder was concealedfrom the family of appellant family during their marriage – Also,the evidence of PW-9 i.e., the psychiatrist was not considered bythe Courts below – Conviction of appellants u/ss.306 and 498AIPC, accordingly, not sustainable.

CDEF

890SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD:1.1. Before convicting an accused under s.306 IPC,the Court must scrupulously examine the facts and circumstancesof the case and also assess the evidence adduced before it inorder to find out whether cruelty and harassment meted out toBthe victim had left the victim with no other alternative but to putan end to her life. It is also to be borne in mind that in cases ofalleged abetment of suicide, there must be proof of direct orindirect acts of incitement to the commission of suicide. Merelyon the allegation of harassment without their being any positiveaction proximate to the time of occurrence on the part of theCaccused which led or compelled the person to commit suicide,conviction in terms of s.306 IPC is not sustainable.[Para 38][906-H; 907-A-B]1.2. In the present case, not only the positive action in closeproximity to the time of suicide is absent but also there is noDevidence for any continuous physical or mental torture metedout to the deceased by the appellants. On the contrary, appellantno. 1 himself took the deceased to consult psychiatrist just aday prior to this incident obviously with the intention to makeher feel better. The said act can by no stretch of imagination beEsaid to be any such act which may lead the deceased to commitsuicide. Further, the allegations made by PW-1 to PW-3 in theirstatement with respect to continuous harassment and torture ofthe deceased by the appellants just after the marriage is notworthy of being relied upon and has to be taken with pinch ofsalt on account of fact that throughout their 9 years of marriage,Fthere has never been any complaint or whisper in this regardeither by the deceased or her family members who appeared asprosecution witnesses. Even the deceased herself who was aqualified doctor never made any complaint in this regard. It isreally hard to believe that well-educated and self-reliant ladyGwould take such things lying down for substantially long periodof 9 years. [Para 35][906-A-D]

1.3. To convict person under Section 306 IPC, there hasto be clear mens rea to commit offence. It also requires an activeact or direct act which leads deceased to commit suicide finding

no other option and the act must be such reflecting intention ofthe accused to push deceased into such position that he commitssuicide. The prosecution has to establish beyond reasonable doubtthat the deceased committed suicide and Appellant No. 1 abettedthe commission of suicide of the deceased. In the present case,both the elements are absent. [Para 36][906-E]

2.1. So far as conviction under Section 498A IPC isconcerned, except the statement of the prosecution witnessesPW-1 to PW-3 recorded after the incident, there is no otherevidence to establish the allegation of any demand of dowry or illtreatment meted out to the deceased during her marriage. Thefact that there were cordial relations between the families ofAppellant No. 1 and the deceased is not disputed. The deceasedcommitted suicide on 05.11.2014 and the complaint against theappellants were filed on 24.11.2014 i.e., 3 weeks after the deathof the deceased. [Para 37][906-F-G]

2.2. PW-1 to PW-3 are interested witnesses, still, PW-3categorically stated that “the marriage between my sister Dr.Amali Victoria and Dr. Bruno was happy marriage”. Thus thereexists material contradictions not only in his own statements andalso the statement of other two witnesses. [Para 40][907-H; 908-A]

3.1. The facts and evidence in the present case which havenot been squarely analysed by both the Trial Court as well as theHigh Court can be summarised as follows:- a.) The complaintagainst the appellants was filed after 3 weeks of the death of thedeceased; b.) There is not shred of evidence with respect tooffence alleged under Section 498A of the IPC meted out to thedeceased by the Appellants; c.) There has been no marital discordbetween Appellant No. 1 and the deceased during their 9 yearsof married life; d.) There have been several emails exchangedbetween Appellant No. 1 and sisters of the deceased wherebythe Appellant No. 1 was showered with praises for taking care ofthe deceased in the best possible manner and credit was alsogiven to his parents for supporting the deceased in her career.Further, it was the sister of the deceased, who herself sent mailto Appellant No. 1 saying “amali is fighting disorder”; e.) The

Adeceased was suffering from bipolar order and also had suicidalideas from few days before suicide. Further, the deceased wasalso undergoing treatment for depression as she was showingmajor symptoms of depression like tiredness, poor sleep pattern,demoralised feeling to name few. The fact that deceased wassuffering from bipolar disorder was concealed from the AppellantBfamily during their marriage; f.) The Trial Court as well as theHigh Court did not take the evidence of PW-9, Psychiatrist intoconsideration while convicting the Appellants under Sections 306and 498A of IPC; g.) The conviction of the appellants is solelybased on the oral evidence of mother and sister of the deceased,Cwho are interested witnesses; h.) The post mortem report doesnot give the cause of the death but on 15.12.14, the cause of thedeath is shown as Ashpyxia due to external compression. [Para43][909-E-H; 910-A-E]

3.2. Having considered the aforesaid facts of the case inDjuxtaposition with the judgments and upon appreciation ofevidence of the eyewitnesses and other material adduced by theprosecution, it is clear that the trial court wrongly convicted theAppellants and the High Court was also not justified in upholdingthe conviction of Appellants under Sections 306 and 498A IPC.[Para 44][910-F]ERamesh Kumar v. State of Chhattisgarh (2001) 9 SCC618 : [2001] 4 Suppl. SCR 247 – relied on.

Geo Varghese v. State of Rajasthan and Another 2021SCC OnLine SC 873; M. Arjunan v. State, representedFby its Inspector of Police (2019) 3 SCC 315; and UdeSingh & Ors. v. State of Haryana (2019) 17 SCC 301 :[2019] 9 SCR 703 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1628 of 2022

From the Judgment and Orders dated 31.01.2022 of the HighCourt of Judicature at Madras in Crl. A. No. 166 of 2021.

Kapil Sibal, Sr. Adv., Arjun Garg, Aparajita Jamwal, Agilesh KumarS., Aakash Nandolia, Ms. Sagun Srivastava, Ms. Aparajita, Advs. forthe Appellants.

P. V. Yogeswaran, Ashish Kumar Upadhyay, Y. Lokesh, V. SibiKargil, V. Kandha Prabhu, Arjun Singh, Anubhav Chaturvedi, PankajKumar Agarwal, Surya Narayan Patro, L. R. Venkatesan, K.Kumaravadivel, Ms. Shiwani Tushir, Ms. Maitri Goal, Advs. for theRespondent.

The Judgment of the Court was delivered by

KRISHNA MURARI, J.

1. The present appeal is directed against the judgment and orderdated 31.01.2022 passed by the High Court of Judicature at Madras(hereinafter referred to as “High Court”) in Criminal Appeal No. 166of 2021 filed by the Appellants herein seeking to set aside the order ofconviction passed by the Sessions Judge, Mahila Court, Chennai(hereinafter referred to as “Trial Court”) in S.C No. 209 of 2016 underSections 498A and 306 of the Indian Penal Code (hereinafter referredto as “IPC”). The Appellants were sentenced to undergo imprisonmentfor period of 3 years with fine of Rs. 5,000/- each, in default ofwhich to undergo simple imprisonment for period of one month underSection 498A IPC and to undergo imprisonment for period of 7 yearswith fine of Rs. 25,000/- each in default of which to undergo simpleimprisonment for period of 3 months under Section 306 IPC. Byimpugned judgment, the High Court upheld the conviction of the Appellantsfor the offence under Sections 498A and 306 IPC.

2. Briefly, the facts relevant for the purpose of this appeal are asfollows:

2.1 The marriage between Appellant No. 1 and Dr. M. AmaliVictoria (hereinafter referred to as “deceased”) was solemnised on08.09.2005 and male child was born out of wedlock in the year 2007.On the professional front, both parties are doctors. Appellant No. 1 wasinformed on 05.11.2014 that the deceased had collapsed in the bathroomof their home and was non-responsive. Immediately, an ambulance wascalled by the father of Appellant No. 1. On reaching the site of the

Aincident, Appellant No. 1 found the deceased having no pulse. Despiteintervention from the neighbors of Appellant No. 1 who were doctors,the deceased could not be resuscitated and passed away on 05.11.2014.Post mortem of the body was conducted on 06.11.2014 and the cause ofdeath was asphyxia due to external compression of the neck.

2.2 On 06.11.2014, The Respondent Police registered FIR No.1865 of 2015 at Police Station K2, Ayanavaram, District Kilpauk, Chennaibased on the statement of Appellant No. 1 owing to the unnatural deathof the deceased under Section 174 of the Code of Criminal Procedure,1973 (hereinafter referred to as “Cr.P.C”).

C2.3 After 3 weeks of the death of the deceased, PW-1(the motherof the deceased) lodged complaint against the Appellant No.1, AppellantNo. 2(mother-in-law), and the father-in-law of the deceased for theoffences punishable under Sections 498A and 306 IPC. Thereafter, theFIR was converted from Section 174 Cr.P.C to Sections 498A and 306IPC.D

2.4 It was the case of the prosecution that the marriage of thedeceased with Appellant No. 1 was solemnised in the year 2005 andsince the deceased was not having child for 1.5 years, the appellantsabused her and compelled her to participate in the Pooja and on therefusal of the same, she was threatened by the appellants that she wouldEdie. Subsequently, the deceased gave birth to male child named Rosandoby caesarean in the year 2007. Further, the Appellant No. 1 causedimmense mental torture to the deceased by compelling her to haveanother child in spite of the fact that the deceased had miscarriagewith her second pregnancy. The deceased was made to do all the domesticFhousehold work and was subjected to continuous cruelty at the hands ofthe appellants. Due to the same reason, the deceased was driven tocommit suicide on 05.11.2014.

3. Thereafter, on completion of the investigation, charge sheetwas filed and cognizance was taken. Since the offences are triable byGthe Court of Session, the said case being SC No. 209 of 2016 wascommitted to Mahila Court, Chennai for trial.

4. The Trial Court framed charges against the appellants for theoffences under Sections 498A and 306 IPC. The appellants pleaded notguilty and therefore they came to be tried for the aforesaid offence.

5. In order to substantiate the case, the prosecution examined 15witnesses. From side of the defence, no witnesses were examined. Thestatement of the appellants was also recorded under Section 313 ofCr.P.C.

6. The Trial Court, after analysing the statement made by theprosecution witness and evidence of the defence, vide judgment andorder dated 26.03.2021 convicted the Appellants i.e., the husband andmother-in-law of the deceased for the offences under Sections 498Aand 306 IPC and were sentenced as stated herein above. The TrialCourt acquitted the father-in-law of the deceased of all the charges.

7. Challenging the judgment and order passed by the Trial Court,the Appellants filed Criminal Appeal No. 166 of 2021 before the HighCourt. The same was dismissed with the observation that the Appellantshave committed the offence under Sections 498A and 306 IPC and theTrial Court rightly appreciated the evidence and convicted the appellantsherein. The Respondent police were directed to send the appellants toundergo the remaining period of sentence. Being aggrieved by the HighCourt order, the appellants have preferred the present appeal.8. We have heard Mr. Kapil Sibal, Learned Senior Advocateappearing on behalf of the appellants and Mr. P.V. Yogeswaran, LearnedCounsel appearing on behalf of the Respondents.

Contentions on behalf of the Appellants:

9. Mr. Kapil Sibal, Learned Senior Advocate submitted that theallegations of cruelty have been made for the first time in the complaintmade by the mother of the deceased and there is not even whisper ofthese allegations in over 9 years of marriage by the deceased or herfamily. On the contrary, the relations between the Appellants and hisfamily, and the deceased and her family were extremely cordial.

10. It was vehemently submitted that the deceased was sufferingfrom bipolar disorder and this fact was not disclosed to the petitioner atthe time of marriage. In spite of the non-disclosure of the same, AppellantNo. 1 took good care of the deceased and it cannot be alleged that thedeceased committed suicide due to abetment by the Appellants.

11. It was further submitted that the complaint has been madebelatedly with an ulterior motive which is also reflected in/from the initialstatements of family members of the deceased made soon after herdeath.

12. It was next submitted that there were no signs of animositybetween the families when their statements were being recordedimmediately after the death of the deceased. However, one of the sistersof the deceased asked for the custody of Appellant No.1’s son (rightsover the property) and on refusal, the complaints started.

B13. It was further submitted that the courts below completelydisregarded the testimony of PW-9 who was the medical professional,who treated the deceased on 04.11.2014 ie., one day before her death.The summary recorded by PW-9 clearly records the history of depressiveillness in the past, suicidal attempts, and suicidal ideas.

C14. It was also submitted that the courts below have proceededwith convicting the appellants solely on the basis of the testimony ofPW-1 to PW-3 alleging continuous harassment and mental cruelty bythe appellants.

15. Reliance was placed on the decision of this Court in AmalenduDPal Vs. State of West Bengal[1], Rajesh Vs. State of Haryana[2],Gurcharan Singh Vs. State of Punjab[3], Ude Singh & Ors. Vs. Stateof Haryana[4].

Contentions on behalf of the Respondents:

16. Mr. P.V. Yogeswaran, Learned Counsel appearing for theERespondents submitted that the evidence of PW-1 to PW-3 has clearlyestablished that after marriage, all the accused persons demanded moredowry and also stated how the deceased was abused and humiliated fornot conceiving and compelled her consume cow urine in the name of‘Pooja’.F17. It was further submitted that the Trial Court as well the HighCourt has weighed all relevant factors, including the nature of the charge,the gravity of the offence and penalty, and the nature of evidence whileconvicting the Appellants under Sections 306 and 498A IPC.

18. It was also submitted that PW-1 to PW-3 have consistentlyGstated about the nature of harassment and incident which instigated thevictim to commit suicide leaving her only child.

1 (2010) 1 SCC 7072 (2020) 15 SCC 3593 (2020) 10 SCC 200H4 (2019) 17 SCC 301

19. It was next vehemently submitted that there is clear evidenceto show that after the abortion of second pregnancy in 2014, the abuse,harassment, and instigation by the accused persons increased many folds.

20. We have carefully considered the rival contentions of thelearned counsel appearing for the parties and perused the entire records.

21. The genesis of the present appeal originates from the impugnedorder pronounced by the High Court whereby the High Court upheld theconviction of the Appellants under Sections 306 and 498A of IPC. Takingthat into account, it is necessary to advert to the essential ingredients ofSection 306 IPC.

22. Section 306 of IPC reads as under: -

“306. Abetment of suicide: - If any person commits suicide,whoever abets the commission of such suicide, shall bepunished with imprisonment of either description for termwhich may extend to ten years, and shall also be liable tofine.”

23. Abetment is defined under Section 107 of IPC which reads asunder:-

“107. Abetment of thing:- person abets the doing of athing, who -

First- Instigates any person to do that thing; or

Secondly- Engages with one or more other person or personsin any conspiracy for the doing of that thing, if an act orillegal omission takes place in pursuance of that conspiracy,and in order to the doing of that thing; or

Thirdly- Intentionally aids, by any act or illegal omission,the doing of that thing.

Explanation 1- person who by wilful misrepresentation, orby wilful concealment of material fact which he is bound todisclose, voluntarily causes or procures, or attempts to causeor procure, thing to be done, is said to instigate the doingof that thing.

Explanation 2- Whoever, either prior to or at the time of thecommission of an act, does anything in order to facilitate the

Acommission of that act, and thereby facilitate the commissionthereof, is said to aid the doing of that act.”

24. While analyzing the provisions of Section 306 IPC along withthe definition of abetment under Section 107 IPC, two-Judge Bench ofthis Court in Geo Varghese Vs. State of Rajasthan and Another[5]hasBobserved as under:-

“13. In our country, while suicide in itself is not an offenceas person committing suicide goes beyond the reach of lawbut an attempt to suicide is considered to be an offence underSection 309 IPC. The abetment of suicide by anybody is alsoCan offence under Section 306 IPC. It would be relevant to setout Section 306 of the IPC which reads as under :-

“306. Abetment of suicide. —If any person commits suicide,whoever abets the commission of such suicide, shall bepunished with imprisonment of either description for termwhich may extend to ten years, and shall also be liable tofine.”

14. Though, the IPCdoes not define the word ‘Suicide’ butthe ordinary dictionary meaning of suicide is ‘self-killing’.The word is derived from modern latin word ‘suicidium’ ,E‘sui’ means ‘oneself’ and ‘cidium’ means ‘killing’. Thus, theword suicide implies an act of ‘self-killing’. In other words,act of death must be committed by the deceased himself,irrespective of the means adopted by him in achieving theobject of killing himself.

F15. Section 306of IPC makes abetment of suicide criminaloffence and prescribes punishment for the same.

16. The ordinary dictionary meaning of the word ‘instigate’is to bring about or initiate, incite someone to do something.This Court in the case of Ramesh Kumar Vs. State ofChhattisgarh1 has defined the word ‘instigate’ as under :-G

“Instigation is to goad, urge forward, provoke, incite orencourage to do an act.”

17. The scope and ambit of Section 107IPC and its co-relationwith Section 306IPC has been discussed repeatedly by thisH5 2021 SCC OnLine SC 873

Court. In the case of S.S.Cheena Vs. Vijay Kumar Mahajanand Anr[6], it was observed as under:-

“Abetment involves mental process of instigating personor intentionally aiding person in doing of thing. Withouta positive act on the part of the accused to instigate or aidin committing suicide, conviction cannot be sustained. Theintention of the legislature and the ratio of the casesdecided by the Supreme Court is clear that in order toconvict person under Section 306IPC there has to be aclear mens rea to commit the offence. It also requires anactive act or direct act which led the deceased to commitsuicide seeing no option and that act must have beenintended to push the deceased into such position that hecommitted suicide.”

25. The ingredients of Section 306 IPC have been extensivelylaid out in M. Arjunan Vs. State, represented by its Inspector of Police[7]which are as under: -

“The essential ingredients of the offence under Section 306I.P.C. are: (i) the abetment; (ii) the intention of the accused toaid or instigate or abet the deceased to commit suicide. Theact of the accused, however, insulting the deceased by usingabusive language will not, by itself, constitute the abetmentof suicide. There should be evidence capable of suggestingthat the accused intended by such act to instigate the deceasedto commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot beconvicted under Section 306 I.P.C.”

26. In order to convict an accused under Section 306 IPC, thestate of mind to commit particular crime must be visible with regard todetermining the culpability. With regard to the same, two-judge benchof this Court in Ude Singh & Ors. Vs. State of Haryana[8]observed asunder:-

6 (2010) 12 SCC 190

7 (2019) 3 SCC 315

8 (2019) 17 SCC 301

“16. In cases of alleged abetment of suicide, there must be aproof of direct or indirect act/s of incitement to the commissionof suicide. It could hardly be disputed that the question ofcause of suicide, particularly in the context of an offenceof abetment of suicide, remains vexed one, involvingmultifaceted and complex attributes of human behavior andresponses/reactions. In the case of accusation for abetmentof suicide, the Court would be looking for cogent andconvincing proof of the act/s of incitement to the commissionof suicide. In the case of suicide, mere allegation of harassmentof the deceased by another person would not suffice unlessthere be such action on the part of the accused which compelsthe person to commit suicide; and such an offending actionought to be proximate to the time of occurrence. Whether aperson has abetted in the commission of suicide by anotheror not, could only be gathered from the facts andcircumstances of each case.16.1. For the purpose of finding out if person has abettedcommission of suicide by another; the consideration wouldbe if the accused is guilty of the act of instigation of the actof suicide. As explained and reiterated by this Court in thedecisions above-referred, instigation means to goad, urgeforward, provoke, incite or encourage to do an act. If thepersons who committed suicide had been hypersensitive andthe action of accused is otherwise not ordinarily expected toinduce similarly circumstanced person to commit suicide, itmay not be safe to hold the accused guilty of abetment ofsuicide. But, on the other hand, if the accused by his acts andby his continuous course of conduct creates situation whichleads the deceased perceiving no other option except to commitsuicide, the case may fall within the four-corners of Section306 IPC. If the accused plays an active role in tarnishing theself-esteem and self-respect of the victim, which eventuallydraws the victim to commit suicide, the accused may be heldguilty of abetment of suicide. The question of mens rea on thepart of the accused in such cases would be examined withreference to the actual acts and deeds of the accused and ifthe acts and deeds are only of such nature where the accusedintended nothing more than harassment or snap show of anger,

particular case may fall short of the offence of abetment ofsuicide. However, if the accused kept on irritating or annoyingthe deceased by words or deeds until the deceased reacted orwas provoked, particular case may be that of abetment ofsuicide. Such being the matter of delicate analysis of humanbehaviour, each case is required to be examined on its ownfacts, while taking note of all the surrounding factors havingbearing on the actions and psyche of the accused and thedeceased.”

27. In the backdrop of the above discussion, we may now advertto the facts of the present case to test whether the conviction of theAppellants for the offence under Sections 306 and 498A IPC is sustainableor not.

28. The marriage of Appellant No. 1 and the deceased wassolemnised in the year 2005 and male child named “Rosando” wasborn out of the wedlock in the year 2007. It is pertinent to mention thatboth, Appellant No. 1 and the deceased are reputed doctors by professionworking in the State of Tamil Nadu. There has been no animosity betweenthe families of Appellant No. 1 and the deceased throughout theirmarriage. Infact, after the marriage, Appellant No. 1 came to know thatthe deceased was suffering from bipolar disorder. Subsequently he alsocame to know that she had suicidal tendencies right from her studentdays and had undergone treatment under psychiatrist at Thirunelveli,Tamil Nadu.

29. At this stage, it may be relevant to refer to the statementmade by Appellant No. 1 under Section 313 Cr.P.C which is as under:

“My wife had mental illness right from her young age. Shehad undergone treatment several times as an in-patient evenwhile she was studying. She had even attempted suicide severaltimes. They had got her married suppressing the above facts.I became aware of these facts only after the marriage when Iconfronted my mother-in-law and my wife’s sister regardingthe above, my mother-in-law had left for America. It was Iwho had treated my wife for 9 years thereafter. I had managedto ensure that the effects of the disease are contained to theminimum possible. She continuously had Bipolar Disorder,Depression, Phobias, Hallucination and Suicidal tendency.

[2022] 14 S.C.R.

AShe had been taking several medicines continuously forthese.”

The fact stands corroborated by the summary of treatment reportdated 04.11.14 by Dr. Shalini, Consultant Psychiatrist, PW-9 which isreproduced below:-B“Dr. Amali Victoria/32/F MBBS, MD(psy), Asst Prof IMH

W/o Mr. Mariano Bruno / 36/ M Mch (Neuro) Surgeon

Mx 7 years A/NC/N/ 1 Son 7/M

•Couple present together

•Wife C/o sadness for past 1 month, after being posted infemale ward @ IMH

o Feels tired, not interested in working

o Feels demoralized, incapacitated

Do Poor sleep

•She had felt well until 6 weeks, suddenly turned more andmore desparate.

•No H/o hypothyroidismE•H/o similar depressive illness in the past (+)

o H/o episode during MBBS, had attempted suicide, hadtaken treatment with psychiatrist at Thirunelvelli,admitted in ICU, TMC.

o 2[nd] episode post partumF

o 3[rd] episode present

•C/o suicidal ideas past two days – hence husband hasbrought her for consultation today

•Client’s husband wants to go in for 2[nd] child, where asGamali fears that she may not be able to cope up. Feelshelpless, hopeless and worthless

•She wants to quit her job, but fears parents in law willleave her and go back to native place. She feels she willnot be able to take care of her son or other future kids onHher own.

•Husband says he had requested for second opinionAbecause he feels she is getting very quiet and inactive athome. She had previously consulted her psychiatristcolleague at IMH also. But husband wants secondopinion as she has been talking of committing suicide forthe past 2 days.

•Amali Counselled

Advised free T3, TSH

RxCap. Prodep (20) 1-0-0Tab Eliwel (25) 0-0-1C× 10 days

• To come with TFT report for review after 10 days

• To continue the therapy for sense of worthlessness”

30. Within few weeks of marriage, the Appellant No. 1 wrote anemail to the deceased’s mother and sister seeking their help in order totake care of the deceased but the deceased’s mother refused to helpand she left for United States. Subsequently, with the help of AppellantNo. 1, the health condition of the deceased improved and she finishedher post-graduation in 2013 with gold medal and subsequently, startedworking in the year 2014. The relationship between the families werecordial and the deceased was very affectionate towards the Appellant’sfamily and there are no evidence of cruelty or harassment meted out toher by the Appellants.

31. In the year 2014, the deceased suffered miscarriage, due towhich she started showing signs of depression and further took treatmenton 04.11.2014 from Dr. Shalini ie, PW-9, who prescribed certainmedications. However, the deceased passed away on 05.11.2014 aftershe was found unconscious in the bathroom.

32. With respect to bipolar disorder with which the deceased wassuffering, it refers to disorder associated with episodes of mood swingsranging from depressive lows to manic highs. Some of the symptoms ofbipolar disorder are as follows:

�Feeling sad, hopeless or irritable most of the time

�Lack of energy

A�Difficulty in concentrating and remembering things

�Loss of interest in everyday activities

�Feelings of emptiness or worthlessness

Indeed, each suicide is personal tragedy that prematurely takesBthe life of an individual and has continuing ripple effect, dramaticallyaffecting the lives of families, friends and communities. However, thecourt of law while adjudicating is not to be guided by emotions ofsentiments but the dictum is required to be based on analysis of factsand evidence on record.

C33. Coming to the case at hand, FIR was lodged by AppellantNo.1 due to the unnatural death of the deceased, soon thereafter, one ofthe sisters of the deceased asked for the custody of the son of AppellantNo.1 and on refusal of the same, the mother of the deceased gave anoral statement after 3 weeks of the death of the deceased alleging thatthe Appellants caused the death of the deceased and that she was subjectDto constant harassment at the hands of the Appellants due to insufficientdowry and the Appellants constantly abused the deceased for notconceiving. It is thereafter, the FIR was converted from Section 174Cr.P.C to Section 306 IPC. Charges were framed and after completionof trial, the Trial Court convicted the Appellants under Sections 306 andE498A IPC. On Appeal, the High Court upheld the same. The operativeportion of the judgment reads as under: -

“16. Two things have to be proved by the prosecution in orderto sustain the appellants’ conviction for the offences underSection 498(A) and 306 IPC, as to whether, the death of thedeceased is unnatural and as to whether the deceasedFcommitted suicide due to harassment, inducement andabetment of the appellants. In this case, as already stated, asper the Medical evidence, it is clear that the victim diedunnaturally and the evidence of P.W.1 to P.W.3 proved thatthe appellants made harassment on the victim and causedGmental and physical cruelty. Due to cruelty, the deceased hastaken the extreme step to end her life.

18. In cases of this nature, no independent witness can beexpected, because in India, the woman are even well qualifiedpersons, considering their family reputation, they may notHexpress certain things to any third person or stranger and

they can only say either to their mother or sister or very closefriend or well-wishers. In this case, P.W.1 is the mother of thedeceased and P.W.2 is the elder sister of the deceased. Thereare no medical records produced on the side of the appellantsto show that the deceased was mentally disordered person orshe is having tendency of committing suicide. However, theevidence of P.W.1 to P.W.3 and P.W.10, would clearly showthat the deceased committed suicide due to the continuousharassment and the mental cruelty made by the appellants.Hence, the evidence of P.W.1 to P.W.3 are reliable andtrustworthy, which inspires the confidence of this Court toconvict the appellants. Testimony of interested witness cannotbe per se discarded and the Court has to adopt carefulapproach and analyse evidence to find out the cogency andcredibility. This Court does not find out any reason todisbelieve the evidence of P.W.1 to P.W.3 and evidence ofP.W.2 was corroborated by the evidence of P.W.10.

20. careful reading of the evidence of P.W.1 to P.W.3 andalso the evidence of the Doctor who conducted post-mortemproved that the victim was subjected to harassment and crueltymade by the appellants. She is well educated and working asa Psychiatrist in the Government Mental Hospital, Kilpauk,she ended her life by way of hanging. Therefore, this Courtfinds that the appellants have committed the offence underSections 498(A) and 306 IPC and the learned trial Judgerightly appreciated the evidence and convicted the appellantsand therefore, there is no merit in this case and the appeal isliable to be dismissed.”34. bare perusal of the impugned judgment indicates that theHigh Court erred in recording the finding that there is sufficient evidencefor convicting the appellants under Section 306 IPC losing sight of thefact that there exists no evidence on record indicating that the deceasedwas meted out with harassment by the appellants just before her death.It is well-settled that not only there has to be evidence of continuousharassment, but there should be cogent evidence to establish positiveaction by the accused which should more or less be proximate to thetime of occurrence, which action can said to have led or compelled theperson to commit suicide.

A35. In case at hand, not only the said positive action in closeproximity to the time of suicide is absent but also there is no evidence forany continuous physical or mental torture meted out to the deceased bythe appellants. On the contrary, appellant no. 1 himself took the deceasedto consult psychiatrist just day prior to this incident obviously with theintention to make her feel better. The said act can by no stretch ofBimagination be said to be any such act which may lead the deceased tocommit suicide. Further, the allegations made by PW-1 to PW-3 in theirstatement with respect to continuous harassment and torture of thedeceased by the appellants just after the marriage is not worthy of beingrelied upon and has to be taken with pinch of salt on account of factCthat throughout their 9 years of marriage, there has never been anycomplaint or whisper in this regard either by the deceased or her familymembers who appeared as prosecution witnesses. Even the deceasedherself who was qualified doctor never made any complaint in thisregard. It is really hard to believe that well-educated and self-reliantlady would take such things lying down for substantially long period ofD9 years.

36. To convict person under Section 306 IPC, there has to beclear mens rea to commit offence. It also requires an active act or directact which leads deceased to commit suicide finding no other option andthe act must be such reflecting intention of the accused to push deceasedEinto such position that he commits suicide. The prosecution has toestablish beyond reasonable doubt that the deceased committed suicideand Appellant No. 1 abetted the commission of suicide of the deceased.In the present case, both the elements are absent.

37. Now, so far as conviction under Section 498A IPC is concerned,Fexcept the statement of the prosecution witnesses PW-1 to PW-3recorded after the incident, there is no other evidence to establish theallegation of any demand of dowry or ill treatment meted out to thedeceased during her marriage. The fact that there were cordial relationsbetween the families of Appellant No. 1 and the deceased is not disputed.GThe deceased committed suicide on 05.11.2014 and the complaint againstthe appellants were filed on 24.11.2014 i.e., 3 weeks after the death ofthe deceased.

38. This Court has time and again reiterated that before convictingan accused under Section 306 IPC, the Court must scrupulously examinethe facts and circumstances of the case and also assess the evidenceH

adduced before it in order to find out whether cruelty and harassmentmeted out to the victim had left the victim with no other alternative but toput an end to her life. It is also to be borne in mind that in cases ofalleged abetment of suicide, there must be proof of direct or indirectacts of incitement to the commission of suicide. Merely on the allegationof harassment without their being any positive action proximate to thetime of occurrence on the part of the accused which led or compelledthe person to commit suicide, conviction in terms of Section 306IPC isnot sustainable.

39. Prosecution in order to prove the guilt of accused/appellantsproduced the following witnesses:

�Mother of the deceased – PW-1

�Sister of the deceased – PW-2

�Brother of the deceased - PW-3

�Carpenter who broke open the bathroom door - PW-4

�servant maid working in the house - PW-5

�AC mechanic who accompanied the carpenter - PW-6

�Colleague of the deceased - PW-7

�Colleague of the deceased - PW-8

�Doctor who gave the treatment to the deceased on 04.11.2014- PW-9

�Doctor who conducted autopsy on the dead body - PW-10

�Doctor who declared the deceased as brought dead on05.11.2014 - PW-11

�Doctor who treated the deceased on abortion of the secondchild - PW-12

�Auto driver - PW-13

�Sub-Inspector of Police - PW-14

�Inspector of Police who investigated the case – PW-15

40. PW-1 to PW-3 are interested witnesses, still, PW-3categorically stated that “the marriage between my sister Dr. AmaliVictoria and Dr. Bruno was happy marriage”. Thus there exists

Amaterial contradictions not only in his own statements and also thestatement of other two witnesses.

41. PW-9, Dr. Shalini is the Psychiatrist who had given treatmentto the deceased on 04.11.2014. she had deposed that the deceasedexpressed her disinterest in duty, complained of lack of sleep and notBfeeling hungry and also had no interest over anything. Further, PW-9stated that these were the symptoms of depression. PW-9 in her summaryof treatment report dated 04.11.2014 stated that the deceased statedcause of sadness for the past 1 month was due to her posting at thefemale ward @ IMH and she feels tired, is not interested in working,poor sleep pattern to name few. Furthermore, it is pertinent to mentionCthat it was also noted in treatment summary by PW-9 that the deceasedhad similar depressive illness in the past i.e., 1[st] episode during MBBScollege days, had attempted suicide, 2[nd] episode post-partum and presentis the third episode. The deceased had suicidal ideas before going forthe consultation with the psychiatrist on 04.11.2014 and the same is evidentDfrom the summary of treatment. However, the evidence of PW-9 i.e.,the psychiatrist has not been considered by the Courts below andconviction of the appellants were solely based on the oral evidence ofPW-1 to PW-3.

42. It is well settled that the Courts ought to be extremely carefulEin assessing the facts and circumstances of each case and the evidenceadduced in the trial for the purpose of finding whether the cruelty metedout to the victim had in fact induced her to end the life by committingsuicide. Reference may be made to the judgment of three-Judge Benchof this Court in Ramesh Kumar Vs. State of Chhattisgarh[9], whereinthis Court set-aside the conviction of the accused for the offence underFSection 306 IPC as ingredients of Section 306 IPC were not satisfactorilyproved. It was observed as under :-

“20. Instigation is to goad, urge forward, provoke, incite orencourage to do “an act”. To satisfy the requirement ofinstigation though it is not necessary that actual words mustGbe used to that effect or what constitutes instigation mustnecessarily and specifically be suggestive of the consequence.Yet reasonable certainty to incite the consequence must becapable of being spelt out. The present one is not case wherethe accused had by his acts or omission or by continuedH9 (2001) 9 SCC 618

course of conduct created such circumstances that thedeceased was left with no other option except to commit suicidein which case an instigation may have been inferred. worduttered in the fit of anger or emotion without intending theconsequences to actually follow cannot be said to beinstigation.

21. In State of West Bengal v. Orilal Jaiswal and Anr.10, thisCourt has cautioned that the Court should be extremely carefulin assessing the facts and circumstances of each case andthe evidence adduced in the trial for the purpose of findingwhether the cruelty meted out to the victim had in fact inducedher to end the life by committing suicide. If it transpires to the

Court that victim committing suicide was hypersensitive toordinary petulance, discord and differences in domestic lifequite common to the society to which the victim belonged andsuch petulance, discord and differences were not expected toinduce similarly circumstanced individual in given society

to commit suicide, the conscience of the Court should not besatisfied for basing finding that the accused charged ofabetting the offence of suicide should be found guilty.”

(emphasis supplied)

43. Accordingly, the facts and evidence in the present case whichhave not been squarely analysed by both the Trial Court as well as theHigh Court can be summarised as follows:-

1.The complaint against the appellants was filed after 3 weeksof the death of the deceased.

2.There is not shred of evidence with respect to offencealleged under Section 498A of the IPC meted out to thedeceased by the Appellants.

3.There has been no marital discord between Appellant No.1 and the deceased during their 9 years of married life.

4.There have been several emails exchanged betweenAppellant No. 1 and sisters of the deceased whereby theAppellant No. 1 was showered with praises for taking careof the deceased in the best possible manner and credit was

10 (1994) 1 SCC 73

also given to his parents for supporting the deceased in hercareer. Further, it was the sister of the deceased, whoherself sent mail to Appellant No. 1 saying “amali isfighting disorder”

5.The deceased was suffering from bipolar order and alsoBhad suicidal ideas from few days before suicide. Further,the deceased was also undergoing treatment for depressionas she was showing major symptoms of depression liketiredness, poor sleep pattern, demoralised feeling to namea few. The fact that deceased was suffering from bipolardisorder was concealed from the Appellant family duringCtheir marriage.

6.The Trial Court as well as the High Court did not take theevidence of PW-9, Psychiatrist into consideration whileconvicting the Appellants under Sections 306 and 498A ofIPC.

7.The conviction of the appellants is solely based on the oralevidence of mother and sister of the deceased, who areinterested witnesses.

8.The post mortem report does not give the cause of the deathbut on 15.12.14, the cause of the death is shown as AshpyxiaEdue to external compression.

44. Having considered the aforesaid facts of the case injuxtaposition with the judgments referred to above and upon appreciationof evidence of the eyewitnesses and other material adduced by theprosecution, we are of the view that Trial Court wrongly convicted theFAppellants and the High Court was also not justified in upholding theconviction of the Appellants under Sections 306 and 498A IPC.

45. As result, the impugned judgment dated 31.01.2022 passedby the High Court as well as judgment and order of the Trial Court dated26.03.2021 are unsustainable and deserve to be set aside and are herebyGset aside. The appellants are acquitted of the charges levelled againstthem.

46. The appeal, accordingly, stands allowed.

Bibhuti Bhushan BoseH(Assisted by : Neha Sharma, LCRA)

Appeal allowed.